Law is Code: Making Policy for Artificial Intelligence

Twenty years have passed since renowned Harvard Professor Larry Lessig coined the phrase “Code is Law”, suggesting that in the digital age, computer code regulates behavior much like legislative code traditionally did.These days, the computer code that powers artificial intelligence (AI) is a salient example of Lessig’s statement.

Good AI requires sound data.One of the principles,some would say the organizing principle, of privacy and data protection frameworks is data minimization.Data protection laws require organizations to limit data collection to the extent strictly necessary and retain data only so long as it is needed for its stated goal.

Preventing discrimination – intentional or not.
When is a distinction between groups permissible or even merited and when is it untoward? How should organizations address historically entrenched inequalities that are embedded in data? New mathematical theories such as “fairness through awareness” enable sophisticated modeling to guarantee statistical parity between groups.

Assuring explainability – technological due process.In privacy and freedom of information frameworks alike, transparency has traditionally been a bulwark against unfairness and discrimination.As Justice Brandeis once wrote, “Sunlight is the best of disinfectants.”

Deep learning means that iterative computer programs derive conclusions for reasons that may not be evident even after forensic inquiry.

Yet even with code as law and a rising need for law in code, policymakers do not need to become mathematicians, engineers and coders.Instead, institutions must develop and enhance their technical toolbox by hiring experts and consulting with top academics, industry researchers and civil society voices.Responsible AI requires access to not only lawyers, ethicists and philosophers but also to technical leaders and subject matter experts to ensure an appropriate balance between economic and scientific benefits to society on the one hand and individual rights and freedoms on the other hand.